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Sunday, 12 October 2014

Bharara, other US officials ‘assisted those behind court-summons to Modi’ (Sunday Guardian)

MADHAV NALAPAT New York | 11th Oct 2014

ppointed to the post by US President Barack Obama, Preet Bharara, the Prosecuting Attorney for the Southern District of New York, "played a key role in facilitating the issuance of a court summons directed at Prime Minister Narendra Modi" during the latter's 26-29 September visit to New York, according to key office-holders in the city and in New Jersey. They claimed that the organisations responsible for the plaint, which resulted in the summons were, according to them, "assisted by Bharara and other US officials in the drafting of the documentation presented to the court", which is located within his territorial jurisdiction in New York City. These sources claim that the groups responsible for the summons have been in regular touch with key US officials in New York and Washington during the process of preparation of the complaint against Prime Minister Modi to the US court and that the fact that summons was about to be issued "was known to the Obama administration well in advance of the event".

On 25 September, just as the special Air India aircraft ferrying the Prime Minister to New York stopped over in Frankfurt for refuelling, the Federal Court of the Southern District of New York issued a summons in his name, asking for a response by 15 October. "The summons violated all canons of due process in the US", a key official in New Jersey pointed out, saying that "no chance was given to the other side to make a representation, nor was there any hearing on the merits of the matter before an action as drastic as the issuing of a summons to an incumbent Head of Government of a friendly state". Although some officials in his entourage wanted the Prime Minister to signal his displeasure by cancelling his US trip and returning to Delhi, Prime Minister Modi himself reacted coolly and opted to face the situation head on by proceeding as scheduled to New York. It was subsequently made clear by the Obama administration that because he was Head of Government of a sovereign state, Prime Minister Modi had immunity from such legal procedures, and that therefore the summons was infructuous. However, there were anxious moments amongst Indian officials in Frankfurt and Delhi when word was first received of the controversial move on the part of the US federal court.

An official in Washington claimed that the decision by the federal judge "was the result of a nudge" from Bharara. However, those tracking the mediagenic US attorney in NYC say that on the contrary, "Preet Bharara is very respectful of law and procedure and would never seek to influence a judge". However, they are silent on accusations that he is personally familiar with those responsible for the plaint, or that he assisted in its preparation.

Prosecuting Attorney Bharara has prosecuted nearly 40 citizens of Indian origin in his five years in office, and detractors ascribe this bias (in a context where those of Indian descent are far from being the major depredators on Wall Street) to his linkages with pro-Khalistan elements, according to a retired official. A source claimed that Bharara knew officeholders of the Coalition Against Genocide (CAG), as well as Sikhs for Justice (SFJ), two organisations who for several years have concentrated their fire on Narendra Modi. These organisations, according to a former official detailing developments in the case, were instrumental in getting the American Justice Center to file a case in the New York Southern District Federal Court under the Alien Tort Claims Act and the Victim Protection Act, both of which empower such courts to conduct trials in cases of human rights violations taking place, even if outside the US. The allegations made in the plaint relate to the 2002 riots in Gujarat, and have been shown to be false by successive courts and investigations in India since that period. Such absence of evidence of Modi's culpability has been explained away by his detractors as being due to his "influence", although that Narendra Modi had such a decisive hold over Sonia Gandhi and Manmohan Singh during the term in office of the UPA may be news to both of them. Interestingly, both the SFJ as well as the CAG have multiple contacts with US-based ISI officials and agents, and have an opaque funding structure.

The ISI and its friends have been particularly active on Capitol Hill, encouraging a host of NGOs to lobby with the US Congress to try and get passed House Resolution 417 in November 2013, which targets India on the ground that the country suffers from an "absence of religious freedom". None of the Representatives who voted for such a resolution appear to believe that there is any absence of such freedoms in countries such as Saudi Arabia or in China, given that it is only India which has been specifically targeted in the resolution. Not surprising, in view of the ISI link to the lobbying process behind its introduction and attempted passage. Nearly four dozen US Representatives backed the resolution, which in effect singles out Hindus as a bloodthirsty and violent group which routinely oppresses minorities in India.

The Obama administration has thus far looked with a benign eye on such India-bashing, itself authoring (through the State Department) an annual report on religious freedom, which consistently brackets India as a country where religious freedom is under threat, with the 1984 anti-Sikh riots, the 2002 Gujarat riots and the 2007 Kandhamal anti-Christian riots in Orissa coming for special mention. These reports are based on the Religious Freedoms Act of 1999, which created a "US Commission on Religious Freedom", which while sparing countries where actual discrimination takes place (but where the US has extensive business interests), targets India extensively. This Commission was behind the 2005 decision to revoke the US visa earlier given to then Chief Minister Narendra Modi, a ban on entry nullified only by his becoming Prime Minister of India on 26 May 2014.

Interestingly, during September 2013, both Manmohan Singh as well as Sonia Gandhi were issued summons by US courts during visits, on the ground that they were complicit in protecting those responsible for the 1984 riots. Those charges collapsed because in the case of Manmohan Singh, he was not in office when the riots took place, while the case against Sonia Gandhi folded because there were no actual victims among the plaintiffs. In the case filed against Prime Minister Modi, these defects were rectified. He was in office (as CM) during the 2002 riots, while thus far two plaintiffs have come forward who have claimed to have suffered losses during the 2002 riots, both from Anand in Gujarat. They have been named in court documents as Asif and "Jane Doe". According to a senior New York-based official, ISI-affiliated organisations in NYC are making efforts at tracking down others in Gujarat willing to be enlisted in the ongoing effort to malign Prime Minister Modi.

That officials in the Obama administration knew of the court process before summons were issued and kept the matter from India, and according to sources, actively participated in the process of preparing plaints against Prime Minister Modi. This indicates that the Obama administration is a divided house, with President Obama himself laying out the red carpet for the PM, even as some officials connive at getting a US federal court to issue a summons against him, despite the absence of a hearing or any other kind of enquiry about the genuineness or otherwise of the charges made in the American Justice Center complaint.

Certainly the ISI and its friends will continue to try and use US courts and the extra-territorial laws in that country to throw mud at a political leader who has captured the imagination of the Indian people in a manner not seen since Indira Gandhi.

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Prof. Madhav Das Nalapat (aka MD Nalapat or Monu Nalapat), holds the UNESCO Peace Chair and is Director of the Department of Geopolitics at Manipal Academy of Higher Education, India. The former Coordinating Editor of the Times of India, he writes extensively on security, policy and international affairs. Prof. Nalapat has no formal role in government, although he is said to influence policy at the highest levels. @MD_Nalapat

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In 1999, Har-Anand published Indutva an anthology of MD Nalapat's 1990s columns from the Times of India. The individual columns are posted here, in 1998 and 1999 of the blog archive, though the exact dates of publication are uncertain.